United States Court of Appeals

for the Fifth Circuit

No. 17-30243

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Gregory M. Ward, 

Defendant—Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:16-CV-9527

USDC No. 2:13-CR-138

Before Jolly, Elrod, and Graves, Circuit Judges.

Per Curiam:*

Gregory M. Ward, federal prisoner # 27350-034, pleaded guilty

without a plea agreement to possessing with intent to distribute 100 grams or 

more of heroin, for which he was sentenced to 236 months in prison. He filed 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 9, 2021

Lyle W. Cayce

Clerk

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No. 17-30243

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a motion seeking postconviction relief under 28 U.S.C. § 2255 on the ground 

that his counsel was ineffective for erroneously informing him that he could 

appeal the denial of his suppression motion even if he entered an 

unconditional guilty plea, among other claims. The district court denied the 

motion, concluding as to this claim that Ward failed to show either deficient 

performance or prejudice under Strickland v. Washington, 466 U.S. 668 

(1984). This court denied Ward a certificate of appealability (COA). The 

Supreme Court remanded this matter for further consideration. See Ward v. 

United States, 139 S. Ct. 2775 (2019). Subsequently, this court granted a

COA on Ward’s claim that counsel had been ineffective for advising him that 

he could appeal the suppression ruling even after entering an unconditional 

guilty plea. 

The Government concedes that the district court erred in denying this 

ineffective-assistance claim without an evidentiary hearing. Although that 

concession is not binding on us, see United States v. Vargas-Garcia, 434 F.3d 

345, 348 (5th Cir. 2005), we agree. Based on our independent review of the 

briefs and the record, which included Ward’s declaration and supporting 

affidavit regarding his reliance on counsel’s allegedly erroneous advice as 

well as consistent contemporaneous records, we conclude that the record did 

not conclusively show that he was entitled to no relief on this claim. See Lee 

v. United States, 137 S. Ct. 1958, 1965-67 (2017); United States v. Reed, 719 

F.3d 369, 374 (5th Cir. 2013); United States v. Bartholomew, 974 F.2d 39, 41 

(5th Cir. 1992). The district court therefore erred in denying this claim 

without an evidentiary hearing. See Bartholomew, 974 F.2d at 41. We do not 

consider Ward’s other arguments that are beyond the scope of the COA. See

United States v. Daniels, 588 F.3d 835, 836 n.1 (5th Cir. 2009).

Accordingly, we VACATE the denial of Ward’s § 2255 motion in 

part and REMAND the case to the district court for an evidentiary hearing

as to this claim. We express no view on the merits of the claim. Ward’s 

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motion for appointment of counsel is DENIED as moot, and his motion for 

leave to file a supplemental brief is DENIED as unnecessary. 

Case: 17-30243 Document: 00515739152 Page: 3 Date Filed: 02/09/2021